Keegan v. All California Mortgage CA1/1

Filed 3/18/15 Keegan v. All California Mortgage CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MEAGHAN KEEGAN, Cross-complainant and Appellant, A141938 v. (Contra Costa County ALL CALIFORNIA MORTGAGE, INC., Super. Ct. No. MSC 10-03266) et al., Cross-defendants and Respondents.

The trial court dismissed Meaghan Keegan’s cross-complaint against All California Mortgage, Inc. (ACM) after she failed to appear at her own deposition and an issue conference. She subsequently moved to set aside the dismissal, but her motion was denied. Keegan, in pro. per., appeals, claiming she was unavailable on both occasions because she suffered a stroke. She now argues the trial court erred in dismissing her action and denying her motion to set aside. We lack jurisdiction to consider Keegan’s appeal of the dismissal order because she failed to identify that order in her notice of appeal. We do have jurisdiction, however, to consider her challenge to the order on the motion to set aside the dismissal. We find Keegan’s appeal of this order has merit and reverse. I. BACKGROUND Keegan was one of several investors in a fractionalized note secured by a deed of trust. After the borrower defaulted, the majority owners of the note wanted to sell certain parcels of the underlying property, but Keegan and several other minority investors

objected. ACM then filed an action for partition against Keegan and the other objectors. Keegan responded by filing a cross-complaint against ACM and various others in Contra Costa County Superior Court for, among other things, breach of contract, breach of fiduciary duty, fraudulent inducement and concealment, and intentional infliction of emotional distress. Upon a motion by ACM, the trial court severed Keegan’s cross- complaint from the main action. Keegan later filed a related action against ACM in Alameda County. On January 2, 2014, Keegan filed a notice of unavailability with the trial court, but did not serve the notice on ACM. The notice indicated Keegan suffered a “severe and debilitating” stroke and would be unavailable between December 31, 2013 and January 22, 2014. The notice also indicated Keegan would be hospitalized during this period. It is unclear from the notice when Keegan suffered the stroke, but she asserts in her appellate briefing that the stroke happened on December 25, 2013, and she was unable to participate in the action through February 7, 2014. Following her stroke, Keegan’s prosecution of her cross-complaint and related matters was inconsistent. Keegan failed to appear for her own deposition on January 10, 2014, and failed to provide ACM with any prior notice other than a phone call from a third party indicating Keegan intended to move for a protective order. Keegan hired an attorney to appear on her behalf at a January 22, 2014 case management conference in her related action in Alameda County. However, in this matter, Keegan failed to appear at the January 29, 2014 issue and settlement conference for the cross-complaint. At the January 29 conference, ACM’s counsel asked the court for monetary and evidentiary sanctions due to Keegan’s failure to appear. After considering the facts, the trial court sua sponte dismissed Keegan’s cross-complaint for failure to diligently prosecute. A formal order dismissing the cross-complaint was entered on February 6, 2014. Several weeks later, Keegan moved to set aside the trial court’s order dismissing her cross-complaint. The court held a hearing on April 22, 2014, and issued a minute order denying the motion on the same day. The court entered a signed order on the matter on May 15, 2014.